Thomas L Pearson and the Pearson Family Members Foundation, The v. University of Chicago, The
Filing
97
OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting in part and denying in part 78 Motion to Compel (tjc, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
THE THOMAS L. PEARSON and THE
PEARSON FAMILY MEMBERS
FOUNDATION,
Plaintiff and
Counterclaim Defendant,
vs.
THE UNIVERSITY OF CHICAGO
Case No. 18-CV-99-GKF-FHM
Defendant and
Counterclaimant,
vs.
THOMAS L. PEARSON,
Counterclaim Defendant.
OPINION AND ORDER
Plaintiff’s Second Motion to Compel From The University of Chicago, [Dkt. 78], is
before the undersigned United States Magistrate Judge for decision. The matter has
been fully briefed. [Dkt. 78, 88, 90].
Plaintiff requests that the court set a date certain for completion of production of
documents.
Defendant has represented that production was completed during the
pendency of this motion, [Dkt. 88, p. 4], that representation was not disputed in the reply
brief. This issue is moot.
Plaintiff requests a ruling of the court about the scope of Plaintiff’s Complaint. [Dkt.
78, p. 14]. The court has addressed specific discovery disputes raised by Plaintiff’s
motion, but declines to provide any commentary outside of that necessary to resolve
those disputes.
Interrogatory No. 17
As modified in Plaintiff’s Opening Brief, [Dkt. 78, p. 8], this interrogatory requires
Defendant to identify every change or modification to several identified websites “or any
other publication relating or referring to The Pearson Institute” with regard to the title of
Professor Robinson.
Defendant states it has produced a list of changes that are
responsive to this interrogatory and that it is willing to produce old versions of the
webpages if Plaintiff supplies a narrowed date range. Plaintiff replies that narrowing the
time frame from website launch in April 2017 to the last revision in 2018 would not be
reasonable.
The Motion to Compel is GRANTED in PART as to Interrogatory No. 17. The court
finds that Defendant has not demonstrated that providing copies of old versions of
webpages for the date range would be unduly burdensome. Defendant is required to
produce those pages. The court finds that Plaintiff’s request for similar information from
unspecified “other publications” relating to The Pearson Institute is too unspecific to
require Defendant to respond.
Request for Production No. 38
This request for production of documents seeks:
all documents relating to the consideration, recruitment, search for, hiring,
and resignation of candidates for the Forum Executive Director position,
including without limitation documents related to both individuals that have
held this title.
[Dkt. 78, p. 10]. Defendant responded that Request No. 38 is duplicative of materials
produced in response to Request No. 2. Plaintiff asserts that Request No. 2 sought
documents relating to the search for, naming of, replacement of, change in title to, or
appointment of the Forum Executive Director, among other positions. Id. According to
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Plaintiff, Request No. 38 is different in that it also seeks documents related to the
resignation of a Forum Executive Director and asks for documents for both individuals
who have held the title. In response to the Motion to Compel, Defendant states that the
additional documents requested are not relevant because Plaintiff has not pled any
allegations that would encompass the requested discovery, as the Forum Executive
Director is not even mentioned in the Complaint. Defendant asserts that, in view of the
absence of any allegation concerning the Forum Executive Director, it should not be
required to re-collect documents from the numerous custodians, apply new search terms,
and review what is likely to be a significant number of additional documents because the
burden of production is not proportional to the needs of the case.
Plaintiff states that, having produced some documents regarding the position of
Forum Executive Director, Defendant has now decided that the information is no longer
within the scope of discovery. [Dkt. 78, p. 10]. The court is aware that much effort was
expended developing ESI search terms and identifying custodians so as to capture the
universe of documents that might address Plaintiff’s claims. It does not appear that
Defendant has changed its position about the scope of discovery, but that documents
responsive to the ESI search terms were produced The fact that some documents
addressing the Forum Executive Director were produced does not justify the expansion
of discovery with additional ESI search terms to encompass areas of inquiry relating to
resignation or termination.
The court notes that Plaintiff has not specified what claim the additional discovery
would address, but generally asserts that information concerning the resignation or
termination of a key employee is highly relevant to its claims because the documents “are
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likely to shed light on the disarray and mismanagement within The Pearson Institute and
the University of Chicago that is the genesis of Plaintiff’s claims in this case.” [Dkt. 78,
pp. 10-11]. The court finds that Plaintiff has not articulated the relevance of the additional
production sought by Request No. 38 and further finds that the additional burden imposed
by production responsive to that request is not proportional to the needs of the case. Fed.
R. Civ. P. 26(b)(1).
The Motion to Compel is DENIED as to Request No. 38.
Request For Production No. 39
This request seeks production of all documents describing or evidencing the
expenditure of any and all funds on behalf of The Pearson Institute. Defendant objected
to the request as appearing to require it to produce every receipt for every expenditure
on behalf of The Pearson Institute and The Pearson Global Forum. [Dkt. 78, p. 11]. The
court finds that the request is overly broad. Plaintiff has offered nothing to justify the level
of detail sought by this request.
In its motion Plaintiff states that it would accept a single document, such as a
general ledger or other regularly kept business record that reflects expenditures. Id.
Plaintiff notes that in its counterclaim Defendant asserts it has incurred significant
expense in operating The Pearson Institute. Id. at p. 12. Defendant responds that
producing the general ledger goes beyond Plaintiff’s allegations and the terms of the
Grant Agreement.
Defendant has produced annual budgets and annual reports.
Defendant
represents that the detailed budgets already provided include a line-by-line year end
variance against each year’s budget and also reflect that the Harris School has
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contributed a significant amount to The Pearson Institute. Defendant states that Plaintiff’s
broad request has not been justified, would require continual update by the Defendant,
and notes that Plaintiff’s claim for breach of fiduciary duty was dismissed.
Plaintiff has not articulated why the budgets and annual reports are insufficient to
demonstrate the amounts being spent on behalf of the Pearson Institute and the Pearson
Global Forum. 1 Plaintiff mentions a footnote contained in the March 31, 2017 draft
operating plan and budget that asserted Defendant’s right to charge millions of dollars of
operating expenses paid by the Harris School of Public Policy against The Pearson
Institute’s funds as being related to its claim of the breach of the duty of good faith and
fair dealing. [Dkt. 78, p. 12]. However, Plaintiff does not explain how the production of
the general ledger or more detailed financial information will address this issue.
The Motion to Compel is DENIED as to Request for Production No. 39.
Documents Related to the 2019 Pearson Global Forum
Plaintiff assert that documents related to the 2019 Pearson Global Forum are
responsive to a list of discovery requests that are listed in a footnote, [Dkt. 78, p. 14, n.1], 2
but that Defendant will not produce the responsive documents because Plaintiff has not
pled allegations related to the 2019 Global Forum. In its response brief Defendant asserts
that the only claim pertaining to the Pearson Global Forum is that the University
anticipatorily repudiated its obligation to hold the Forum in 2018.
At the time of
Defendant’s response brief, the planning for the 2019 Forum was in its final stages and it
The court has given no consideration to the vague and unsupported statement contained in Plaintiff’s
reply brief that the University has failed to disclose critical information concerning operating expenses so
that the continued viability of The Pearson Institute and the Pearson Global Forum is no longer guaranteed.
2
Although the motion to compel is not being denied on this basis, the court notes that Plaintiff has not
complied with LCvR 37.2 (d) which requires that an opening brief in support of a discovery motion “shall
include a verbatim recitation of each [discovery request] . . . which is the subject of the motion.”
1
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was scheduled to be held on October 18-19 in Berlin, Germany. Given the planning, and
the number of people involved, Defendant states that production of documents related to
the 2019 Forum would require the University to collect, review, and produce tens of
thousands of additional documents.
Defendant asserts this is unduly burdensome
because there are no allegations related to the 2019 Forum. In its reply brief, Plaintiff
states that the documents related to the 2019 Forum when compared to 2018 will
demonstrate the level of planning and preparation for the 2018 Forum, which is at issue.
It is inconceivable that production of all documents related to the 2019 Pearson
Global Forum would be proportional to any matter at issue even if some information about
the planning and execution of the 2019 Pearson Global Forum may be relevant to
Plaintiff’s claims.
The Motion to Compel is DENIED as to the 2019 Pearson Global Forum.
Conclusion
Plaintiff’s Second Motion to Compel From The University of Chicago, [Dkt. 78], is
GRANTED in Part and DENIED in Part, as set out herein.
SO ORDERED this 22nd day of October, 2019.
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